Julian Assange v Swedish Prosecution Authority
Citations:  EWHC 2849 (Admin).
Assange was a journalist and the founder of Wikileaks. While on a lecturing trip in Sweden, he allegedly (among other matters) ‘stealthed’ a woman. Stealthing is having sex with a woman but removing the condom before or during sex without telling her.
Assange was charged under Swedish law with a variety of sexual offences, including sexual molestation and rape. He gave himself up for arrest in the UK, and Sweden applied for his extradition. Sweden had to show that what Assange was accused of was, if true, a criminal offence under UK law.
Assange denied that this test was met. He argued that under UK law the complainant consented to sex. It was argued against him that lying about whether he was wearing a condom would either vitiate the woman’s consent or give rise to a conclusive presumption under s.76(2)(a) of the Sexual Offences Act 2003. This provision imposes a conclusive presumption that the complainant did not consent and that the defendant did not reasonably believe in consent if ‘the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act’.
- Does removing a condom during or before sex without the partner’s knowledge give rise to a presumption of non-consent under s.76(2)(a) of the Sexual Offences Act 2003?
- Does removing a condom during or before sex without the partner’s knowledge vitiate the partner’s consent to sex?
The High Court held that the dual criminality requirement was met. They held that s.76(2)(a) is not relevant to an allegation of stealthing. This is because lying about whether the defendant is wearing a condom is not deceit as to the ‘nature and purpose’ of the sex act.
However, the court held that stealthing could vitiate consent in the ordinary sense. This would be the case where the complainant made clear that she only consented to sex with a condom. As Assange’s alleged behaviour would be rape under UK law, the dual criminality requirement was satisfied.
This Case is Authority For…
s.76 only applies where the defendant deceives the complainant as to the nature and purpose of the sex act. This is not the case where the defendant lies about whether he is lying about wearing a condom.
However, lying about wearing a condom can vitiate consent in the ordinary sense if the partner made clear that sex was conditional on the defendant wearing a condom.
Can any conditions placed upon consent vitiate that consent if violated? It appears not. Assange was examined by the Court of Appeal in R v Lawrance  EWCA Crim 971. There, the Court of Appeal held that the defendant’s lying about having a vasectomy did not vitiate consent. This was even though, similar to Assange, the complainant’s consent was plainly conditional on the defendant having had a vasectomy.
The Court of Appeal argued that the distinction between the two cases lay in the fact that the complainant in Lawrance agreed to sex without any ‘physical restrictions’ and without deception as to the ‘physical performance’ of the sex act. Wearing a condom relates to ‘physical performance’, but a vasectomy does not.